HFGJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 50

HFGJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 50 (23 January 2024)

Division:GENERAL DIVISION

File Number:          2023/8187

Re:HFGJ  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date:23 January 2024

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the cancellation decision dated 19 November 2020 be revoked.

.......................[sgd].................................................

Deputy President Britten-Jones

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant came to Australia at five years of age – applicant committed most of his crimes as a teenager – whether there is ‘another reason’ to revoke mandatory cancellation decision under s 501CA(4) of the Migration Act 1958 – significant impediments and serious risk of harm if removed to South Sudan – the primary considerations of the protection and expectations of the Australian community are outweighed by the countervailing considerations – decision under review is set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M1/2021 v Minister for Home Affairs [2023] HCA 17
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)

DFAT Country Information Report for South Sudan dated 5 October 2016

UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to South Sudan - Update III (October 2021)

REASONS FOR DECISION

Deputy President Britten-Jones

23 January 2024

1. This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Global Special Humanitarian (class XB) (subclass 202) visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]

   [1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.

   THE DECISION TO CANCEL THE APPLICANT’S VISA

2. On 19 November 2020 the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.

3. The applicant sought revocation of the cancellation decision and made representations in support of revocation by documents dated 30 November 2020 and 17 December 2021.

4. On 1 November 2023 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 3 November 2023, the applicant applied to the Tribunal for review of the non-revocation decision. The Tribunal heard the matter on 15 and 16 January 2024.

   LEGISLATIVE FRAMEWORK

5. Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

6. The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]

   [2] Migration Act 1958 (Cth) (Migration Act) s 501(7)(c).

7. Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:

   501CA  Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

   (1)  This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   (2)  For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

   (a)would be the reason, or a part of the reason, for making the original decision; and

   (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

   (3)  As soon as practicable after making the original decision, the Minister must:

   (a)give the person, in the way that the Minister considers appropriate in the circumstances:

   (i)a written notice that sets out the original decision; and

   (ii)particulars of the relevant information; and

   (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

   (4)  The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)that the person passes the character test (as defined by section 501); or

   (ii)that there is another reason why the original decision should be revoked.

8. Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.

   ISSUES BEFORE THE TRIBUNAL

9. The applicant concedes appropriately that he does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.

10. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]

    [3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].

    [4] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].

11. The applicant gave oral evidence and provided written statements dated 21 September 2020, 13 May 2022 and 30 August 2022. He was supported by written and oral evidence from his brother. The applicant relied upon a very comprehensive report dated 13 May 2022 and oral evidence from a registered psychologist and counsellor, Christine Bakopanos. A youth worker from the Dandenong branch of the Youth Support Advocacy Service (YSAS) gave written and oral evidence. Dr Zimmerman provided a risk assessment and psychiatric report dated 7 September 2022 but was not called to give oral evidence.

12. The applicant does not pass the character test. The only issue for the Tribunal is whether there is ‘another reason’ to revoke the cancellation decision having regard to the principles and considerations in Direction 99[5] to which I will now turn.

    [5] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).

    DIRECTION 99

13. The purpose of Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99) is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.

14. The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 as follows:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non­citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    (4)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5)  With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)  Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non­ citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

15. In making a decision under s 501CA(4), the following are primary considerations:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)whether the conduct engaged in constituted family violence;

    (c)the strength, nature and duration of ties to Australia;

    (d)the best interests of minor children in Australia; and

    (e)expectations of the Australian community.

16. In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

17. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[6]

    [6] Direction 99 at 7.

    BACKGROUND

18. The applicant is a 23 year old man who was born in what is now South Sudan. He has little to no memory of his time as a child before coming to Australia with his mother and three brothers at the age of five. He is aware from his family that his father was killed in the war when he was about two years old. The applicant’s mother and her four sons fled their village and ended up in a refugee camp in Kenya before legally coming to Australia as refugees.  His mother had problems integrating into the community in Australia and suffered from severe trauma, mental health issues and alcoholism which impeded her ability to care for her children. Child Protection services became involved and the applicant spent time in a foster home. The applicant abused alcohol and drugs from about the age of 11 and his schooling was fragmented. The applicant was not living with his mother when she died of hypothermia in tragic circumstances when the applicant was only 12 years old. The trauma and associated guilt of his mother’s death have had a lasting impact on the applicant’s mental health with which he has only just come to terms.

    CONSIDERATION

    Protection of the Australian community – 8.1 of Direction 99

19. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 99, I give consideration below to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 99

20. The applicant’s record in the youth justice system is extensive. He was frequently before the Children’s Court from the age of 14 years old in the period 2014 to 2019 when he received many youth supervision orders ‘without conviction’. The offences included theft, burglary, assault, being drunk in a public place, possession of drugs, possessing a controlled weapon and breach of youth supervision orders. He has little recollection of these offences which were mostly unplanned and committed under the influence of alcohol or drugs. The applicant’s first recorded conviction was on 24 January 2018 for offences including theft, robbery, unlawful assault, affray, drug possession and recklessly cause injury. The applicant committed further offences in December 2018 and January 2019 of theft, recklessly cause injury and contravening bail conditions. The Magistrate imposed an effective sentence of eight months detention. Shortly after being released the applicant committed his most serious offending including aggravated burglary – offensive weapon, recklessly cause injury and theft for which he was sentenced to an effective term of imprisonment of 34 months. Whilst in prison on 28 November 2020 the applicant was involved in an assault of another prisoner for which he was convicted of affray.  He explained that he was not part of the initial group that confronted the victim, that he did not have a weapon and that he was ‘only on the outskirts.’ He was sentenced to 10 days imprisonment.  There was also evidence before the Tribunal that the applicant was engaged in aggressive and abusive behaviour whilst in prison and detention. The applicant was unable to recall most of these incidents but admits that he did not cope well at first in prison and that he became frustrated at times in detention.

21. The applicant’s conduct would be considered very serious because of its violent nature and the fact that it continued despite warnings from the youth justice system. The significant custodial sentence of 34 months reflects the seriousness of his offending. The applicant offended soon after being released from youth detention and after receiving a very fair warning from the sentencing magistrate on 30 January 2019. He had some involvement in further violent offending whilst in prison. The cumulative effect of his offending is very serious. He has shown a complete disregard for authority by re-offending and breaching his bail conditions. His final offence was committed in prison after the date of the cancellation decision.

22. On the other hand, the applicant’s background is a relevant factor in his offending. The County Court judge described it as a background of ‘trauma, dysfunction, disadvantage and…distance from positive role models’. When sentencing the applicant, the judge took into account his disadvantaged background noting that ‘there can be some real reduction in your moral culpability’. Further, I consider it relevant that his offending was not sophisticated, was mostly unplanned and that all of his offending (except for the affray offence in prison) occurred as a teenager. The County Court judge noted that his relevant prior criminal history was ‘entirely comprised of matters dealt with in the Children’s Court other than a prior matter dealt with subsequently [that] year’.  

23. Another factor is that the majority of the applicant’s offending was under the influence of drugs or alcohol and when, for the most part, he was not at school or employment and had no parental supervision. The sentencing magistrate on 30 January 2019 said that ‘It’s clear that you and alcohol do not mix at all and when you are drinking, that you are more likely to be committing an offence.’ As he explained to Ms Bakopanos, ‘You let the day take you where it does…there was no structure, no routine, no plans. That’s how it is for me and my crimes, it was not planned.’[7]

    [7] Exhibit 1 at p 188.

24. I conclude as to the nature and seriousness of the applicant’s conduct that it was very serious. It is a significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99

25. In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[8] As required by paragraph 8.1.2(2) of Direction 99, I also have regard to, cumulatively:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non­ citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    [8] Direction 99 at 8.1.2(1).

1. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[9] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

   [9] (2014) 225 FCR 424; [2014] FCA 673.

   Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99

2. If the applicant were to engage in further similar criminal offending, the nature of the harm would be serious. The sentencing judge for the aggravated burglary noted that it was an inherently serious crime that had shook the confidence of the victim who felt insecure and unsafe in his own home.

   Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99

3. The applicant has expressed remorse for his offending and insight into why he offended. In his statement of 21 September 2020 he said:

   Being clean of drugs and in a controlled environment, I have been able to see things clearly. This has given me space to put myself in the position of the victims of my crimes. I truly regret what I have done. I never meant to hurt people. I now realise I was young and dumb, had problems with drug and alcohol abuse, anger against society and peer pressure.

   I have to overcome these problems and get my life in order. I have a plan to achieve that.

4. The applicant struggled with adult prison at first but after being transferred to Barwon prison he stayed out of trouble and began his plan towards rehabilitating himself. He completed the Talking Change program which consisted of three sessions in September 2021. He completed the High Intensity Violence Intervention Program over a seven month period ending in May 2022. He also undertook a drug and alcohol course. From October 2020 to May 2022, he engaged in counselling over 31 video conference appointments with Ms Bakopanos from Foundation House. The counselling addressed his past trauma for the first time in a meaningful way. Ms Bakopanos provided a comprehensive report on 13 May 2022 detailing the positive progress made by the applicant. She also gave oral evidence to the Tribunal about the applicant’s ongoing engagement with her since the formal counselling ended in May 2022. She is very optimistic about his future because of the way he has engaged in the counselling. She concluded in her report:

   In my therapeutic work with [the applicant] over 18 months, he has shown politeness, respect, gratitude, openness and warmth. He has demonstrated the capacity and willingness to reflect and learn, to develop and make changes, to better himself and his life, with the support now being offered to him. He shows insight and understanding, confidence and maturity.

   [The applicant] has expressed ongoing interest in continuing trauma counselling with me throughout his time in custody and detention, and when he is living in the community. [The applicant] always expresses appreciation at the end of the appointments. Being supported is very important to [the applicant], as is having a safe therapeutic space to express his thoughts and emotions and to make sense and meaning of his life experiences.

5. In her oral evidence to the Tribunal Ms Bakopanos confirmed the gains the applicant had made since his counselling began in October 2020. Her view of the applicant as a 23 year old is that he has significantly increased in maturity since he was 19 years old. He has taken responsibility for his past criminal conduct and he is motivated to improve himself.  He wants a family of his own and a good future so that he can honour his mother’s memory.  She was impressed that after the applicant left prison and ended the formal counselling sessions, he had proactively contacted her because he recognised the benefits provided by their ongoing engagement.

6. I was very impressed by the evidence of Ms Bakopanos and her role in helping the applicant develop to a point that he is ready to integrate back into society. She explained in her oral evidence how the applicant has developed the skills necessary for life in the community. In particular she said that he had a well developed capacity to avoid further offending. She explained about the supports that would be provided by herself or others at Foundation House if he were released. They will be available to direct the applicant towards the other support services with whom the applicant will need to engage. The applicant has indicated a desire to engage with these services and Ms Bakopanos is confident that he will do so. Ms Bakopanos confirmed what was said in her report, namely:

   When released back into the community, [the applicant] will continue to be supported by Foundation House. He will require a suite of support in the transition back into community, and my role will be to create a care team approach and to collaborate closely with appropriate services who can support [the applicant] in relation to education/training and employment, physical and mental health, substance use, recreation, and housing. YSAS is a service that [the applicant] has engaged with well over many years, and they have indicated that they are available to support [the applicant] up until the age of 25 years. [The applicant] also has the emotional and practical support of his older brother and sister in law with whom he will live, until he is employed full-time and can plan towards moving into independent living.

7. The optimistic view of the applicant’s future expressed by Ms Bakopanos was supported by the written and oral evidence of Maleth Ouk, a team leader at the Dandenong YSAS who has known the applicant since 2015. Mr Ouk explained that the applicant had voluntarily re-engaged with him at the end of 2022 and that he exhibited signs of a new maturity and insight. He was particularly impressed that the applicant had developed an understanding that his past co-offenders were not his friends and that he had strategies that would prevent his engagement with those negative peer groups. Mr Ouk confirmed that YSAS had locations throughout Melbourne who would provide support to the applicant if he were released. He would continue to be involved with him directly.

8. The applicant has been assessed by a forensic psychiatrist, Dr Zimmerman, who provided a comprehensive risk assessment and psychiatric report dated 7 September 2022. She concluded that he posed a medium risk of violence and said:

   I believe that his maturation from a child to a young man, his period off drugs, the support and opportunities to him provided by his older brother, his ongoing engagement with a trauma specialist and his completion of a correctional violence reduction program are the major factors that are protective for him.

9. The respondent referred me to an earlier report from a clinical psychologist, Carla Lechner, who had examined the applicant in July 2020. Ms Lechner said in a report dated 13 August 2020 that the applicant presented as a high risk of reoffending ‘in the absence of treatment’ noting that this risk level could be decreased with targeted intensive intervention. My view is that since the date of this report the applicant has been the subject of appropriate treatment which has significantly reduced his risk of reoffending. I give little weight to the risk level opined by Ms Lechner because much has changed since 2020 and I am required to consider the evidence of rehabilitation achieved by the time of my decision. There was also a reference to the applicant having a high risk of reoffending in a parole application report from Corrections Victoria dated 4 February 2022 but little is known about that assessment and I give it minimal weight.

10. The applicant has not offended since the affray in November 2020 which was a significantly less serious offence than the next most recent offending in July 2019. Since then, he has engaged in regular counselling and availed himself of rehabilitative courses. He has abstained from drug and alcohol use. His written statements indicate a genuine desire to live a better life if released. He appears to have learnt from his time in prison and detention.  There were some incidents of aggression and abuse in detention in 2022 and 2023. The applicant said that he was protecting himself but at the very least I consider that the applicant was becoming very frustrated with life in detention and behaved inappropriately at times. Detention is a difficult environment and I do not consider that these incidents establish that the applicant is not adequately rehabilitated or ready to be released into the community. 

11. I was impressed with the way the applicant gave his evidence to the Tribunal. He was quietly spoken but able to clearly articulate what he had learnt from his rehabilitative courses and the counselling. He expressed genuine remorse about his past criminal conduct and understood the harm he had caused to his victims. He became very emotional when discussing the death of his mother when he was only 12 years old. It was a traumatic event that impacted him greatly. He felt guilty because he was not there to help his mother.  Thereafter things spiralled out of control with more serious offending and abuse of alcohol and drugs. He would have benefitted from counselling at the time, but none was provided.

12. By engaging in rehabilitative programs and counselling and abstaining from drugs and alcohol over the last three years the applicant has demonstrated an appropriate level of rehabilitation. There is a realistic plan to assist him to reintegrate into the community if released and I am confident that he will engage with the services being offered to him. He will be released into the stable environment of his brother’s family who live on the other side of town, far away from the location of his previous offending and his negative peer influences. His brother does not drink and has a job in construction. He has said that he will help his brother find a job.

13. The respondent submitted that the applicant was at least a moderate risk of reoffending and that Ms Bakopanos did not express an opinion as to risk of reoffending and therefore Dr Zimmerman’s opinion should be preferred. Whilst the applicant was referred to Foundation House for trauma counselling, the report from Ms Bakopanos considered the trajectory ahead for the applicant. Further, the applicant’s engagement with the counselling and the lessons learnt from it are relevant to an assessment of the risk of him reoffending. Ms Bakopanos has spent more time with the applicant than any other expert. She is a qualified counsellor and a registered psychologist with over 15 years of experience. She said in her report that as the applicant ‘has moved into his young adult years, he has begun developing more emotional and cognitive maturity and self-awareness’. She said that over the 18 months working with him, ‘he has demonstrated the capacity and willingness to reflect and learn, to develop and make changes, to better himself and his life, with the support now being offered to him’. 

14. Since writing her report in May 2022, Ms Bakopanos has had regular contact with the applicant and she remains very optimistic about his prospects if he is released. Under cross examination before the Tribunal, she expressed her opinion that he has the necessary maturity and a well developed capacity to avoid further offending. She considered that he has the skills to cope if released into the community. This most contemporaneous opinion of Ms Bakopanos is very relevant to my conclusion that the likelihood of the applicant engaging in further criminal or other serious conduct is low to moderate. The report of Dr Zimmerman was very instructive and helpful and I have taken it into account together with the report of Ms Bakopanos and her oral evidence when concluding that the applicant’s risk of reoffending is low to moderate.

    Conclusion as to protection of the Australian community – 8.1 of Direction 99

15. The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[10] The applicant has committed serious crimes but has shown that he is adequately rehabilitated with a low to moderate risk of reoffending. It is my view that the applicant’s conduct and the harm that would be caused if it were to be repeated is not so serious that any risk that it may be repeated is unacceptable.[11] In the circumstances where there remains some risk of violent re-offending, I conclude that the protection of the Australian community is a factor that weighs moderately against the applicant.

    [10] Direction 99 at 8.1(1).

    [11] Direction 99 at 8.1.2(1).

    Family Violence – 8.2 of Direction 99

16. The applicant has not committed family violence. This factor is neutral.

    Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99

17. This primary consideration provides at paragraph 8.3 of Direction 99:

    (1)  Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2)  In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

    (3)  The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

    (4)  Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

    a)    the length of time the non-citizen has resided in the Australian community, noting that:

    i.considerable weight should be given to the fact that a non­ citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

    ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

    iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non­ citizen began offending soon after arriving in Australia.

18. The applicant has lived in Australia since he was 5 years old. Paragraph 8.3(4)(a)(i) of Direction 99 requires me to have regard to the length of time the applicant has resided in the Australian community noting that considerable weight should be given to the fact that he has resided in Australia during and since his formative years, regardless of when his offending commenced and the level of that offending. Accordingly, I give considerable weight to the applicant being in Australia since his early childhood including his formative years. The applicant has been educated in Australia and has been here for about 18 years. He has three older brothers in Australia together with eight aunts and uncles, four nieces and nephews and 24 cousins. He said in his request for revocation that they would all be devastated if he were removed to South Sudan because he has no family there. He has a particularly close relationship with his second oldest brother and his four children, with whom he will live if released from detention. This brother gave written and oral evidence describing the applicant’s traumatic childhood and the support he will provide him if released.

19. The applicant has had very limited periods of positive contribution to the Australian community. His education was fragmented and he was expelled from some schools he attended. He did play some Australian rules football and he completed the Victorian Certificate of Applied Learning (Intermediate level).

20. In conclusion with respect to ties to Australia, I place significant weight on the fact that the applicant has spent the majority of his life in Australia including his formative years. The applicant has a lot of his family in Australia. I conclude that this is a factor that weighs very heavily in favour of revocation of the cancellation decision.

    Best interests of minor children – 8.4 of Direction 99

21. I must determine whether non-revocation of the cancellation of the applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:[12]

    (a)  the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b)  the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)   the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)  the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

    (e)  whether there are other persons who already fulfil a parental role in relation to the child;

    (f)    any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)  evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    (h)  evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

    [12] Direction 99 at 8.4(4).

22. The applicant has two nephews and two nieces. He has never met the nieces who were born after he was taken into custody in July 2019. When in the community he developed a close relationship with the two nephews who are aged 14 and 9. The applicant’s brother, who is the father of these children, gave evidence that they all lived together including the applicant for a period after the death of their mother and that the applicant had a good relationship with his nephews and used to play games with them and take them to the park. I consider it would be in the best interests of the nephews if the cancellation decision was revoked but I give this less weight because his relationship with them is non-parental and there have been long periods of absence. It would also be in the best interests of the nieces who would benefit from having an uncle in their lives, but I give this even less weight because he has never met them. The interests of minor children is a factor that weighs in favour of revocation but I do not give it significant weight.

    Expectations of the Australian community – 8.5 of Direction 99

23. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[13] The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was serious but I do not consider there is an unacceptable risk of further re-offending. I take into account that the Australian community would have a higher level of tolerance of the applicant’s criminal past because he has lived in Australia for most of his life and from a very young age.[14] The applicant has been in Australia for 18 years since he was 5 years old.

    [13] Direction 99 at 8.5(1).

    [14] Direction 99 paragraph 5.2(5)

1. Paragraph 8.5(4) of Direction 99 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. It is not for me, as a decision maker, to make my own assessment of community expectations. However, in the weighing up exercise by which I evaluate whether to exercise my discretion, I am still entitled, and indeed should where appropriate, give weight to the circumstances particular to the applicant. In this regard, the following words of Stewart J in FYBR v Minister for Home Affairs[15] remain apposite to the expectations of the Australian community under Direction 99:

   [97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.

   …

   [102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be…

   [15] (2019) 272 FCR 454; [2019] FCAFC 185.

2. In considering the weight to be attached to the expectations of the Australian community as part of the evaluative exercise in determining whether there is another reason to revoke the cancellation decision, I take into account his traumatic childhood which involved witnessing atrocities of war, fleeing his own country and losing both his father and mother in tragic circumstances.

3. The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was serious and I find that the Australian community expects that the Australian government should cancel the applicant’s visa. However, I give this consideration less weight because his criminal conduct must be seen in the context of his traumatic childhood and because Australia would afford him a higher level of tolerance because he has lived in the Australian community since he was five years old.

   Other Considerations

4. In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99, but these are not exhaustive.[16]

   [16] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

   Legal Consequences of Decision – 9.1 of Direction 99

5. This other consideration provides at paragraph 9.1 of Direction 99:

   (1)  Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non­citizen.

   (2)  A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

   (3)  International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

6. The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to South Sudan.

7. I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.

8. The respondent submits that the Tribunal is entitled to and should defer consideration of non-refoulement obligations because it is open to the applicant to apply for a protection visa. The applicant submits that no further deferral is reasonable and there is sufficient evidence on which to base a finding of non-refoulement.

9. The applicant has not applied for a protection visa but it is open to him to do so. Consequently, the applicant is not the subject of a protection finding (as defined in s 197C) and paragraph 9.1.2 of Direction 99 is relevant:

   9.1.2 Non-citizens not covered by a protection finding

   (1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.

   (2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

   (3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non­revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non­ citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

10. The applicant submits that the Tribunal should not speculate or find that the applicant will apply for a protection visa if unsuccessful on this application. I accept that submission but it remains the case under paragraph 9.1.2(2) of Direction 99 that, where it is open to the applicant to apply for a protection visa, I am ‘not required to determine whether non-refoulement obligations are engaged in respect of the person’ and I ‘may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed…’ (emphasis added).

11. The decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs[17] (Plaintiff M1/2021) provides that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law.

    [17] [2022] HCA 17.

12. I intend to defer assessment of whether the applicant is owed non-refoulement obligations because it is open to the applicant to apply for a protection visa. That does not mean that I ignore the representations made by the applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[18] but ‘one available outcome’ is the deferral of the substantive assessment of such a claim.[19] This is consistent with the terms of paragraph 9.1.2 of Direction 99.  I take into account that there is likely to be considerable delay if the applicant does take the step of applying for a protection visa.

    [18] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].

    [19] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].

13. In this case, the applicant has clearly raised claims which may give rise to international non-refoulement obligations. I deal with them below.  Paragraph 9.1.2(2) of Direction 99 provides that it is not necessary at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues, as I have decided to do in this matter.

    Applicant’s representations including as to risk of harm

14. The applicant made representations concerning risk of harm in South Sudan.

15. The High Court has provided the following guidance for this situation:[20]

    [37] … [The Tribunal is] not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.

    …

    [39] Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.

    (Footnotes omitted)

    [20] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [37] and [39].

16. CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[21] (CKT20) makes clear that I am required to consider facts underpinning the claim such as the risk of harm arising from violence and instability along ethnic lines. In CKT20 the Full Court of the Federal Court rejected the Minister’s submission that there was no obligation to consider a claim based on ethnicity in South Sudan.[22]

    [21] [2022] FCAFC 124.

    [22] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [97] to [106].

17. The applicant said he would not be able to survive if removed to South Sudan which he described as a war zone with no proper government. He fears persecution as a western returnee who may be perceived as wealthy and be kidnapped for ransom. He fears harm from the ongoing instability and insecurity in South Sudan. The applicant is a Murle person who he said are a people that are attacked by both the Dinka and Nuer peoples in South Sudan.

18. It is apparent from the DFAT Country Information Report for South Sudan dated 5 October 2016, and a more recent report from the United Nations High Commissioner for Refugees (UNHCR)[23] that the situation in South Sudan remains dire. There are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system. South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. UNHCR considers that persons fleeing South Sudan are likely to meet the criteria for refugee status. The applicant would be at risk of harm from ethnic violence because he is a Murle. 

    [23] UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to South Sudan - Update III (October 2021).

19. In summary, I accept the applicant’s concerns as expressed in his representations that he will likely face serious harm if removed to South Sudan. It is not in dispute that the applicant left South Sudan as a child with his family due to the war. The applicant would have no family support or other network if removed to South Sudan. The risk of harm is a factor that weighs heavily in favour of revocation of the cancellation decision. 

    Consequence of the decision

20. I note the recent decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs[24] (NZYQ) and the subsequent legislation in the Migration Amendment (Bridging Visa Conditions) Act 2023 which was assented to on 17 November 2023. The High Court found that ss 189(1) and 196(1) were beyond the legislative power of the Commonwealth insofar as they applied to NZYQ and that his continuing detention was unlawful. As a result of this decision many detainees have been released. It would appear that the impact of the decision is that many detainees will no longer be subjected to indefinite detention but may be released on certain conditions such as a requirement to wear a monitoring device or be subject to a curfew. However, there is no evidence suggesting the Minister considers the applicant to fall into this cohort and will be released.

    [24] [2023] HCA 37.

21. If the cancellation decision is not revoked, s 198(2B) would require the applicant’s removal from Australia if he did not make an application for another visa. The respondent submits that the legal consequence of a non-revocation decision by the Tribunal is not affected by NZYQ because s 198 of the Act (read with s 197C(1) and (2)) will continue to require the applicant’s removal. The applicant agrees with that submission but says that the consequences of removal are catastrophic for the applicant. This is consistent with my previous finding that the applicant will likely face serious harm if removed to South Sudan. 

22. If the cancellation decision is not revoked, he will either be removed to South Sudan or face ongoing detention (which I expand upon below). In either event, the consequence for the applicant would be serious. In South Sudan he would likely be harmed and face discrimination for being a Murle and a western returnee. In detention, his mental health will deteriorate, and he will continue to be separated from the community. Dr Zimmerman opined in her report that any removal to South Sudan would likely cause profound emotional distress to the applicant who left Africa aged five years old and has no family support there.  She said he would be at risk of full-blown PTSD and that it would be unlikely that he would have access to appropriate mental health treatment.  As to further detention, Dr Zimmerman said that he would be at risk of a deterioration of his resilience the longer he is held in detention with a growing risk of frustration and depression.

23. I note that if the cancellation decision is not revoked, the applicant may remain in detention whilst any protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. The delay associated with this may be significant. There is some merit in the applicant’s submission that he would have no reasonable prospects of success in a protection visa application, although that involves a measure of speculation. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. Ongoing detention would impact the mental health of the applicant and would have adverse consequences. In WKMZ v Minister for Immigration, Citizenship,Migrant Services and Multicultural Affairs,[25] Kenny and Mortimer JJ considered the impact of further detention, which is apposite to the applicant:

    … The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.

    [25] [2021] FCAFC 55 at [132].

24. The prospect of further detention is a factor that weighs in favour of revoking the cancellation decision. It would appear from the High Court’s decision in NZYQ that indefinite detention is no longer a likely consequence, although the applicant suggests that NZYQ may not apply to him in which case the prospect of indefinite detention remains. If NZYQ was applied to the applicant then he may be released and subjected to certain conditions such as a requirement to wear a monitoring device or a curfew. Whilst this potential consequence is less severe than ongoing detention, it would still have a negative impact on the applicant.

25. The effect of the applicant’s primary contentions is that NZYQ would not apply to him and that there remains a very real prospect of removal to South Sudan or indefinite detention. I accept that contention. Even if NZYQ did apply, there would still be a negative impact on the applicant. Both the applicant and the respondent accept that an immediate consequence of a non-revocation decision is removal to South Sudan so I give that consequence very significant weight when deciding whether there is another reason to revoke the cancellation decision.

    Extent of impediments if removed – 9.2 of Direction 99

26. Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the applicant’s age and health;

    (b)whether there are substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to him in that country.

1. The applicant is 23 years old and in relatively good physical health. Dr Zimmerman opines that there is no evidence of a major mental disorder, albeit there is evidence of traumatic experiences as a child and drug and alcohol abuse.  

2. I find that the applicant would face significant impediments if removed to South Sudan and he would have great difficulty establishing himself and maintaining basic living standards. This arises primarily because the applicant left South Sudan when he was a young child and has no network of family or friends to support him there. The matters referred to above in relation to risk of harm are also relevant to extent of impediments and I will not repeat them here. The impact of the humanitarian crisis and ongoing tribal instability in South Sudan would have a significant impact on the applicant because of his unfamiliarity with the country and his lack of family or other support. There would be substantial language and cultural barriers, made worse by his limited education. Dr Zimmerman opined that any removal to South Sudan would likely cause profound emotional distress to the applicant who left Africa aged five years old and who has no family support there.  She said he would be at risk of full-blown PTSD and that it would be unlikely that he would have access to appropriate mental health treatment. 

3. This is a factor that weighs heavily in favour of revocation of the cancellation decision.

   Impact on victims – 9.3 of Direction 99

4. There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.

   Impact on Australian business interests – 9.4 of Direction 99

5. There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.

   CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA

6. I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.

7. The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision. The countervailing considerations are the applicant’s ties to Australia, the best interests of children, the extent of impediments if removed, the risk of harm if removed and the prospect of indefinite detention.

8. That the applicant has been in Australia since he was five years old and has taken appropriate steps to rehabilitate himself since his last offending in November 2020 are the most decisive factors in my decision. This is a case where Australia would afford a very high level of tolerance of the applicant’s criminal and other serious conduct because of the very early age of arrival. Further, most of his offending was unplanned criminal activity committed as a teenager with a negative peer group under the influence of alcohol and/or drugs. He is now 23 years old and has matured significantly since those teenage years.  He has taken positive steps to address his early life trauma and his abuse of alcohol and drugs. He has expressed an understanding of why he engaged in his criminal conduct and he has a plan in place to not reoffend. That involves staying away from those negative peer influences and from alcohol and drugs. The offending was not so severe that any risk of repetition is unacceptable. In any event, I consider there to be only a low to moderate risk of reoffending. If released, the applicant will go into a stable and supportive environment with his brother and will have the benefit of ongoing support from Foundation House and YSAS. In all of these circumstances, the protection and expectations of the Australian community are outweighed by the countervailing considerations.

9. I am satisfied that there is another reason to set aside the non-revocation decision.

   DECISION

10. The decision of the Tribunal is to set aside the non-revocation decision and substitute a decision that the cancellation decision be revoked.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

.........................[sgd]...............................................

Associate

Dated: 23 January 2024

Dates of hearing:	15 & 16 January 2024
Counsel for the Applicant:	Angus MacNab SC & Tanya Skvortsova
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	Jade Birman & David Brown
Solicitors for the Respondent:	Australian Government Solicitor